A. Ricco v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alfred Ricco, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 251 C.D. 2021
Respondent : Submitted: October 15, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 2, 2021
Alfred Ricco (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) January 14, 2021
order affirming the Referee’s decision that denied him UC benefits under Section
402(e) of the UC Law (Law).1 The sole issue before this Court is whether the UCBR
erred by concluding that UPMC Presbyterian Shadyside (Employer) met its burden
of proving that Claimant committed willful misconduct. After review, this Court
affirms.
Claimant worked for Employer as a Senior Manager IT-DBA from
November 26, 2007 until February 21, 2020, when Employer terminated his
employment. Employer had a policy that paid time off (PTO) earned by an employee
vests after three years of employment. Thereafter, if an employee resigned but
returned to work for Employer within one year, the employee would be entitled to
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
his previously accrued PTO. If, however, the employee’s PTO had not vested before
he resigned, it was forfeited and, even if Employer rehired him within one year, his
PTO would not be restored (Policy). See Certified Record (C.R.) at 97-98, 102.2 In
addition, Employer’s Policy and Procedure Manual (Manual) specified that
employee “[t]ime must be recorded accurately.” C.R. at 86. Further, the Code of
Conduct portion of the Manual expressly prohibits employees from unethical
behavior, including “[f]alsifying records, including . . . business-related
documentation[.]” C.R. at 80-81. Claimant had access to and was familiar with
these policies. See C.R. at 100-101, 111.
In February 2019, Matt Dalessandro (Dalessandro),3 an employee
Claimant supervised, resigned. Pursuant to Employer’s Policy, because Dalessandro
had not yet worked for Employer for three years, the approximately five weeks of
PTO he earned to that point had not vested, and he lost it. See C.R. at 78, 98.
A short time thereafter (approximately March 2019), Dalessandro
expressed an interest in returning to work for Employer, and inquired of Claimant
whether he would be entitled to, inter alia, any of his forfeited PTO. See C.R. at 16.
In approximately May 2019, Claimant asked his supervisor, Employer’s Data
Services Director Cristin Sargo (Sargo), if Dalessandro could have any of his
forfeited PTO if Employer rehired him, and Sargo referred him to Employer’s Lead
Human Resources (HR) Consultant Jennifer MacEachern (MacEachern). See C.R.
at 104-105, 109. MacEachern told Claimant that Employer could not reinstate
Dalessandro’s PTO. See C.R. at 98-99, 109. Dalessandro returned to work for
Employer.
2
Claimant’s Reproduced Record is a copy of the Certified Record, thus, the citations
therein are Certified Record citations. For clarity, this Court will similarly reference the record
herein.
3
Although the Referee’s telephone hearing notes of testimony reflect that the employee’s
name is Matt Elsandro, his name is Matt Dalessandro. See C.R. at 78.
2
In February 2020, MacEachern learned that Claimant had given his
staff PTO over the holidays. See C.R. at 98, 108. While investigating that incident,
MacEachern became aware that, despite Employer’s Policy, Claimant had
authorized Dalessandro to take approximately 12 days of unearned PTO. See C.R.
at 78, 97, 100. On February 11, 2020, MacEachern and Sargo met with Claimant to
discuss Claimant’s actions. See C.R. at 98-99. During that meeting, Claimant
admitted to giving Dalessandro PTO (on May 30, July 13, July 15-19, August 8, and
December 23-24 and 26-27, 2019), and allowing Dalessandro’s time record in
Employer’s automated time and attendance system (Kronos) to reflect that
Dalessandro worked those days. Claimant declared that he had Sargo’s prior
approval to do so. See C.R. at 78, 98, 100. Sargo denied giving Claimant any such
approval. See C.R. at 98.
At MacEachern’s and Sargo’s request, by February 11, 2020 email,
Claimant outlined his PTO practices. See C.R. at 77-78. Therein, Claimant
explained that Dalessandro had been an exceptional employee, and that he allowed
him to take unearned PTO on the subject dates, but added that Dalessandro had
worked some extra hours on evenings and weekends. See C.R. at 78, 110.
By February 21, 2020 letter, Sargo notified Claimant that Employer
was terminating his employment, effective that day, on the basis that he “encouraged
[Dalessandro] to falsify [his] time card, which is considered theft of time[,]” “[he]
showed poor judgment in [his] decision making [and], as a result, [Employer had]
diminished trust in [him] as a leader.” C.R. at 75; see also C.R. at 100.
Claimant applied for UC benefits on February 23, 2020. On March 16,
2020, the Altoona UC Service Center determined that Claimant was ineligible for
UC benefits pursuant to Section 402(e) of the Law. Claimant appealed and a Referee
held a hearing on September 15, 2020. On September 23, 2020, the Referee affirmed
the UC Service Center’s determination. Claimant appealed to the UCBR. On
3
January 14, 2021, the UCBR affirmed the Referee’s decision.4 Claimant appealed
to this Court.5
Initially,
Section 402(e) of the Law provides that an employee is
ineligible for [UC] benefits when his unemployment is due
to discharge from work for willful misconduct connected
to his work. The employer bears the burden of proving
willful misconduct in a[] [UC] case. Willful misconduct
has been defined as (1) an act of wanton or willful
disregard of the employer’s interest; (2) a deliberate
violation of the employer’s rules; (3) a disregard of
standards of behavior which the employer has a right to
expect of an employee; or (4) negligence indicating an
intentional disregard of the employer’s interest or a
disregard of the employee’s duties and obligations to the
employer.
Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(emphasis omitted) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev.,
755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted)).
Where willful misconduct is based upon the violation of a
work rule, the employer must establish the existence of the
rule [and] its reasonableness, and that the employee was
aware of the rule. Once employer meets this burden, the
burden shifts to the claimant to prove that the rule was
unreasonable or that he had good cause for violating the
rule.
4
On January 29, 2021, Claimant sought reconsideration of the UCBR’s decision, which
the UCBR denied on February 12, 2021.
5
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
4
Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev., 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)). “A claimant has good
cause if his . . . actions are justifiable and reasonable under the circumstances.”
Grand Sport Auto Body v. Unemployment Comp. Bd. of Rev., 55 A.3d 186, 190 (Pa.
Cmwlth. 2012) (citation omitted) (quoting Docherty v. Unemployment Comp. Bd. of
Rev., 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)). Ultimately, “[t]he question of
whether conduct rises to the level of willful misconduct is a question of law to be
determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev., 105 A.3d
839, 844 (Pa. Cmwlth. 2014).
Claimant argues that the UCBR erred by concluding that Employer met
its burden of proving that Claimant committed willful misconduct.
At the Referee hearing, Sargo confirmed that Claimant mentioned
Dalessandro’s interest in returning to Employer and asked her if Dalessandro could
get his PTO reinstated, and she directed Claimant to ask HR. See C.R. at 104-105.
Sargo declared that was the only conversation she had with Claimant on that subject,
and she never authorized Claimant to let Dalessandro take unearned PTO.6 See C.R.
at 104. Sargo further pronounced that she has never given Claimant any type of
permission to handle PTO internally within their department without HR’s approval.
See C.R. at 105.
Sargo explained that employees or their managers post their PTO on
the calendar and, every two weeks, before she approves the time cards and signs off
for payroll processing, she checks the PTO calendar to make sure those dates were
reflected in Kronos. See C.R. at 105. Sargo testified that Dalessandro’s PTO subject
6
Sargo claimed that the only option she could have authorized for Dalessandro within the
department would have been a flexible work schedule (i.e., working a weekend day in order to
have a week day off). See C.R. at 105.
5
dates had been removed from the calendar before she undertook her sign-off process
for the relevant weeks, so she was not aware that he took PTO. See C.R. at 105.
Sargo described seeing an email Claimant authored directing that Dalessandro’s
PTO be removed from the PTO calendar. See C.R. at 105.
Claimant testified that, when he discussed Dalessandro’s PTO with
Sargo, she told him that if HR did not approve the request, she and Claimant could
make it work internally. See C.R. at 108. Therefore, Claimant claims that he did
what he had approval to do. See C.R. at 108, 113. Claimant admitted that he allowed
Dalessandro’s schedule in Kronos to reflect that Dalessandro worked on the days for
which he was given PTO. See C.R. at 110-111, 113. However, Claimant declared
that he had been a team leader for nearly 13 years, and would not have allowed
Dalessandro to take unearned PTO without approval. See C.R. at 108, 111-112.
Claimant further clarified that the actual PTO he permitted Dalessandro
to take was closer to 8 days, and not the 12 days Employer claims, because
Dalessandro had worked extra hours. See C.R. at 110. Claimant asserted that his
actions were “not harmful in any way,” C.R. at 108, because the value of bringing
someone with Dalessandro’s experience back to work for Employer (as opposed to
hiring and training someone new) was greater than the “pretty small” (i.e., $3,000.00
to $4,000.00) dollar amount Employer lost by giving Dalessandro the PTO. C.R. at
110; see also C.R. at 113.
Based upon the evidence, the Referee denied Claimant UC benefits
pursuant to Section 402(e) of the Law, stating: Employer established that it had a
PTO policy in place; Claimant was aware of that policy; and, based upon Employer’s
witnesses’ credible testimony that Claimant allowed Dalessandro to use unearned
PTO without authorization, Claimant’s conduct violated that Policy. See Referee
Dec. at 3; C.R. at 118.
6
This Court has explained: “[T]he [UCBR] is the ultimate fact-finder in
[UC] matters . . . . Where substantial evidence supports the [UCBR’s] findings, they
are conclusive on appeal.” Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations
omitted)). “Substantial evidence is relevant evidence upon which a reasonable mind
could base a conclusion.” Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment
Comp. Bd. of Rev., 739 A.2d 616, 618 (Pa. Cmwlth. 1999)). “The [UCBR] is also
empowered to resolve conflicts in the evidence.” Serrano v. Unemployment Comp.
Bd. of Rev., 149 A.3d 435, 439 (Pa. Cmwlth. 2016). Therefore, “‘[q]uestions of
credibility and the resolution of evidentiary conflicts are within the sound discretion
of the [UCBR], and are not subject to re-evaluation on judicial review.’” Id. (quoting
Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1388 (Pa. 1985)).
Here, the UCBR adopted the Referee’s factual findings7 and
conclusions of law and affirmed the Referee’s decision, reasoning:
The [UCBR] resolves the conflicts in the testimony, in
relevant part, in favor of [Employer] and finds its
witnesses’ testimony to be credible.
....
[C]laimant’s supervisor credibly testified that [Claimant]
did not have permission to grant [Dalessandro] unearned
PTO time. Although [Claimant] indicated that he wanted
to allow this individual additional PTO time because he
was a good employee, this is not good cause for violating
[Employer’s] [P]olicy. Further, directing an employee to
falsify [his] timesheet(s) is behavior which falls below the
standard of conduct that an employer has [a] right to
expect.
UCBR Op. at 1; C.R. at 139 (quotation marks omitted).
7
The UCBR amended Referee Finding of Fact 2 “to reflect that [C]laimant was aware of
[E]mployer’s PTO vesting policy.” UCBR Order at 1; C.R. at 139.
7
Based upon this Court’s review of the record, there was substantial
evidence to support the UCBR’s findings and conclusions. Thus, this Court holds
that the UCBR properly concluded Claimant committed willful misconduct without
good cause for doing so. Accordingly, this Court discerns no error or abuse of
discretion by the UCBR in denying Claimant UC benefits under Section 402(e) of
the Law.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alfred Ricco, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 251 C.D. 2021
Respondent :
ORDER
AND NOW, this 2nd day of December, 2021, the Unemployment
Compensation Board of Review’s January 14, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge